UNANSWERED QUESTIONS FOR THE SOUTH AFRICA APARTHEID LITIGATION AS U.S. SUPREME COURT APRIL 17 RULES AGAINST THE KIOBEL CASE
On Wednesday, 17 April 2013, the US Supreme Court ruled that the Nigerian plaintiffs who had claimed that the Royal Dutch Petroleum Company had been complicit in violating their human rights, may not continue their litigation in US courts using the Alien Tort Statute, the 1789 statute enacted to deal with violations committed by pirates on the high seas.
In a 9-0 opinion, the court affirmed the Second Circuit’s dismissal of the Kiobel complaint that the Alien Tort Statue (ATS) does not permit claims for the “extra-territorial” claims made in that case. The Court decided that “where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” The Kiobel case did not in their view, meet that standard.
The decision is a major blow for the plaintiffs in the Kiobel case. Its impact on the South Africa Apartheid Litigation which has been pending before the Second Circuit Court since January 2010, awaiting the Supreme Court’s decision in Kiobel, is not yet clear.
Chief Justice Roberts did point out that the Court wished to be careful to leave the door open to “a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”. Strangely, the Court made no finding on the question of corporate liability despite the Second Circuit having previously concluded that the ATS does not permit claims to be brought against corporations.
The New York Times has warned that the decision could affect the Court’s 2004 decision to allow lawsuits “in federal courts by foreigners against the most abhorrent foreign violators of universally accepted rights, like torturers and perpetrators of genocide, even when the abuses took place in other countries, as long as the defendants had sufficient contact with the United States.”
In passing the ATS in 1789 the US Congress had shown intent to give causes of action to sue pirates committing acts on the high seas, a clear intent to allow for extraterritorial jurisdiction. At no time did Congress try to limit this interpretation of the statute.
“That the Supreme Court chose not to adhere to the intent of Congress is disappointing beyond words,” said Khulumani US attorney Michael Hausfeld, pointing to unfortunate reasoning applied by the Court in reaching this decision.”
Apartheid victims filed their lawsuit in November 2002, some four years after the closure of the Human Rights Hearings of the Truth and Reconciliation Commission (TRC), seeking compensation from multinational companies that they claimed had aided and abetted the perpetration of gross human rights violations during apartheid.
The case was filed against the background of the failure of multinational corporations to appear before the TRC’s Business Hearings to answer for their role in ensuring the prolonged survival of the bankrupt apartheid regime. They had supported the apartheid government in violation of the United Nations’ resolution that had declared apartheid a crime against humanity, only because it was highly profitable to do so.
Ordinary South Africans suffered the consequences of these business dealings as they rose up to resist apartheid oppression and became the victims of violations committed with the resources provided by the multinationals identified in the lawsuit. These included armoured vehicles, weapons and ammunition, oil to power the military vehicles, finance to make these purchases and the computer hardware and software that was used to racially classify South Africans.
In a substantive advance in the South African Apartheid Litigation, Judge Shira Scheindlin in April 2008 had argued that the litigation was one element of allowing “the truth about apartheid, its causes and effects … about who was responsible for its maintenance, to emerge.” Judge Scheindlin called on defendants to cease their appeals and to allow the case to proceed to court. Sadly, the SCA decision seems to have put an end to this critical opportunity for victims to find some redress through the US courts.
Even the South African government in the person of the Minister of Justice, Mr Jeff Radebe, had argued for the claims of aiding and abetting in violation of international law, to be heard in the designated US courts.
Some fifteen years after the closure of the TRC’s Human Rights Hearings, victims of apartheid atrocities who served as proud struggle veterans, remain without justice or redress in the form of effective and adequate reparations. Tens of thousands live on the edge of survival despite their huge contributions to the struggle. It was the failure to elaborate an inclusive, fair, non-discriminatory regime of reparations for victims and survivors of major apartheid harm that had originally led to the filing of the apartheid lawsuit.
The Kiobel decision seems to have “cut a hole into the web of accountability. Human rights abusers may be rejoicing today, but this is a major setback for their victims,” said Elisa Massimino, President of Human Rights First. US law professor, Connie de la Vega suggests this is “more evidence that the corporations have taken over and could perhaps lead to more extremism as people lose hope about the fact that they will continue to plunder and pillage our economies.”
Rita Kesselring, Swiss scholar and Khulumani colleague has written that “In an environment in which few institutions, whether judicial or political, have been able to secure the accountability and liability of corporations, the ATS has served a unique and critical function. It has had the power to enforce liability for compromising the dignity of human beings and (it) has strengthened international human rights against corporate abuse.” Today, this power to advance corporate accountability has been significantly reduced by the US Supreme Court’s decision.